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Water protection, property rights debated; lakeshore development bill gets passed by Vermont House

How far is the state willing to go to protect its lakeshores? The House passed a bill today that goes exactly 250 feet.

H.526 requires property owners to obtain a permit prior to building within this distance of a lakeshore. The bill went through 12 permutations before making it to the House floor yesterday, where it withstood several hours of scrutiny.

Rep. David Deen, D-Putney, chair of the Fish & Wildlife Committee, which sponsored the bill, said he is content with the final iteration. But not everyone is as pleased.

Environmental organizations are hoping the Senate enacts stricter standards when it takes the bill up. On the other side of the issue, some lawmakers say H.526, which was watered down considerably in committee, is still an infringement on private property.

Proponents of the bill say it’s a good first step towards improving water quality of lakes by preserving the vegetative cover on their shorelines.

At the outset of consideration, the lakeshore protection bill would have outlawed construction within 100 feet of a shoreline.

The version of the bill that passed today does not contain a no-build zone, but it does require lakefront property owners to obtain a permit from the Agency of Natural Resources for construction occurring within 250 feet of a lakeshore.

Rep. Kate Webb, D-Shelburne, a member of the Fish & Wildlife Committee, said the members struggled to develop a bill that respected the rights of both municipalities and private property owners. The initial bill “really didn’t have any support,” Webb said, among members of the committee.

Deen said H.526 now makes it “exquisitely clear that private property is private property.” By purging the bill of the no-build provision, it adopts a performance standard rather than a zoning standard. In other words, there are no restrictions on how close to the shore something can be built, as long the project complies with water quality and habitat preservation standards laid out in the bill.

But environmental groups say this change saps much of the bill’s strength. “The message it sends,” Kim Greenwood, water program director for the Vermont Natural Resources Council (VNRC) said, “is you can build anywhere as long as you get a permit.”

H.526 would not apply to the 48 municipalities that already have vegetative cover requirements for shoreline property.

Greenwood says this provision also weakens the bill, since some of these bylaws are more lenient than the state standards H.526 sets up.

“If we are trying to be equally protective of our lakes, then some minimum standards really should apply to every lakeshore.”

The VNRC is also concerned that H.526 will send property owners scrambling to start projects before ANR implements its permit process in January 2015.

“Until January 2015, people can cut, build, impact, put in lawns with impunity and that is obviously a big loophole that we‘d like to see closed,” Greenwood said.

If a flurry of construction does ensue, Deen said his committee would consider putting a temporary moratorium on lakeside development.

On the House floor Wednesday and today, private property rights trumped lakeside protection as the primary concern.

Rep. Robert Helm, R-Fair Haven, proposed a slew of amendments that would have given greater leeway to private property owners. Helm said he didn’t buy the “doom and gloom” argument that Vermont’s lakes are deteriorating. “I’ll tell you, our lakes are improving,” Helm said, adding that even if there is truth to the naysayers’ argument, “planting a bunch of bushes out front isn’t going to do a whole lot.”

There were also worries among lawmakers that the bill hands too much discretionary power to ANR.

Koch explained that he supports the intent of the bill, but he doesn’t trust ANR to execute it. “Certainly when I’m water skiing and I take a face plant and involuntarily gulp some water, I want it to be clean,” Koch said. But, he added, “we give them [ANR] a blank check and say go ahead and write the regulations.”

But this is not a cause for concern, Deen said, because ANR will develop rules with input from stakeholders, and the agency will have to receive the Fish & Wildlife Committee’s approval prior to putting them in place.

Clarification: Rep. Kate Webb said the initial bill did not have the support necessary for a favorable vote out of committee. It had strong support among environmental advocates. Article updated at 2:11pm on March 29, 2013.

We have lost all property rights under code name ZONING and this happened a long time ago. Furthermore, those rights were TAKEN without giving the property owners one cent and continues today under the guise of protecting the other residents.

As an owner of river front property in Vermont, I do understand the conflict between my rights and the state’s ability to tell me what I can and can’t do. However, I also understand that what I do on my river front intrinsically impacts every other shoreline parcel upstream as well as downstream, not to mention the water quality and habitat of the river itself. I’d rather have guidelines and permitting regulations to protect the river than have loose rules or NO guidelines, and then I’ve lost my property to erosion or killed a whole section of river habitat.

I completely understand your point and agree with nearly every word of it. As a farmer and logger I interact daily with the environment and choices I make are done with guidelines, regs and integrity in mind. I’m a much bigger fan and respond to the carrot rather than the stick. Education and incentives (for those that need to take government money to do the right thing) will have better results than telling those of us intent on doing the right thing we’ve got to bow down and submit. I’d have more faith in those regulating the land (or lobbying it) if more than a few of them ever made a living on it.

While protecting water quality and preserving habitat should surpass property rights there is another important factor related to our quality of life here in Vermont. That is natural scenic beauty. When I moved to Vermont in the 1960’s there were miles and miles of beautifull and undeveloped shorelines on our lakes and ponds. Now there is very little undeveloped land left and some of it is so over developed that it is actually ugly. Is that the kind of Vermont we want to pass on to future generations? Lets preserve our shorelines to the greatest extent possible.

Vermont’s lakes and rivers give us beauty, food, cooling, the water we drink, wildlife, and recreation – plus a great number of ecosystem services, but we have not done well by them. I am disappointed when someone claims they should be able to override these ancient, generous systems because they ‘own’ them.
_______

“The United States Environmental Protection Agency (EPA) has declared that an astounding 55 percent of rivers and streams in the country are in “poor condition for aquatic life.” The results of their first comprehensive survey of waterway health reveal shrinking vegetation cover, high levels of phosphorous and nitrogen, and pollution from mercury and bacteria—none of which are all that great for human health either. These issues pose a threat not only to 1.2 million miles of waterways, but also the coastal areas, lakes and bays that are served by those rivers and streams. Additionally, as the EPA emphasizes, the polluted, unhealthy waterways include vital sources of drinking water.” 3/26/13

While shore land protection is important for the cleanliness of the lakes, this bill has some serious flaws. It provides very little direction to ANR for rule making, thereby giving ANR carte blanche on permit requirements. I addition, it allows ANR to create rules for accessory structures, but gives no authority to ANR to provide for primary structures (residential or commercial). This will be fodder to litigation for years to come.

This advice has been passed on to the House Committee and to the Senate committee. I hope that someone listens!

Rep. Kate Webb’s comment does an injustice to the many Vermonters who drove through the rain and ice to testify in SUPPORT of the original bill, which was based on sound science and clear constitutional public trust authority of the state to make regulations protecting water quality and wildlife. The original bill did have strong support. As many people testified for it at the public hearing as testified against and the same is true for committee hearings held during regular business hours.

The scientists from ANR made a clear case that their years of education and outreach were not enough to keep some landowners from clearcutting lakeshore lots, destroying wildlife habitat and polluting the water that belongs to us all in common–not just those of us fortunate enough to own lakeshore property.

The original bill was modeled after similar, science-based laws in Maine and New Hampshire, where property values have not been affected negatively by the protections in those states and sensible development along lakeshores continues. It is too bad that Vt House members did not have the political will to ensure lakes in Vermont received the same protection as those in our neighboring states. Hopefully, the Senate will prove more courageous.

Anthony – thank you for the opportunity to correct this – I don’t know where they got the quote “didn’t have any support.” That may have taken that from me saying the first draft wouldn’t have had the VOTES, as more than half expressed opposition to the first draft. Although the first bill didn’t have the committee votes (as most don’t), the bill had tremendous SUPPORT coming from the environmental and scientific community as well as lake users and lakeshore owners. Through 12 drafts, we were able to bring the bill to the floor of the house with a strong vote. The bill has been sent to the Senate where I would expect both those in favor and those in opposition will lobby the Senate to make additional changes. Stay tuned. Representative Kate Webb

I have lived on a large lake for 42 years and have observed some degradation, mostly in aquatic growth than in clarity. If we cannot swim, fish or go boating in our lakes and ponds because of weeds and/or pollution then we all lose- the property values decline, the tourists stay away and the fishing stops. A huge investment/resource lost to the individual, the municipality and the state.
I have worked with a number of ANR staff over the years and they are very knowledgeable and obviously very keen on the environment. H.526 is very intrusive and if you let ANR write the guidelines, with or without “stakeholders” involvement, it will end up more intrusive, not less.
If you let bureaucrats design a sandwich- you may get balony!
Outreach, education and local involvement will do more than mandated regulations that people tend to ignore and ANR cannot enforce.

Vermont took the initiative back in the 70’s and created legislation that would have protected our lakes and shoreland zones. New Hampshire and Maine both followed suit, and have since provided for some of the best quality lakes and water in the US. Vermont, on the other hand, took steps in the other direction by repealing the legislation.

When comparing the health of the three states’ lakes, it is irrefutable that NH and Maine’s legislation has allowed for healthier lakes and cleaner water. Facts are facts, and we can no longer ignore the blatant truth: our lakes are headed in the wrong direction. The Act 138 Report outlines this in clear detail:

This bill will establish onerous restrictions on private use of land within this 250 foot lakeshore zone, yet it fails to provide any regulation to mitigate the major sources of pollution into Lake Champlain and other bodies of water within the State.

This bill will allow the ANR to regulate the height of grass on any property owner’s lawn within 250 feet of a waterway, yet a farmer will still be free to allow high volumes of fertilizer to run off directly into our lakes and streams.

Agricultural activities represent one of the single largest contributors of pollution into our lakes and waterways.

State and Federal roadways and accompanying culverts transport the second largest source of nutrients, sediment, organic matter, pesticides, and other pollutants directly into waterways from miles away.

This bill provides FULL exemptions for both agricultural runoff and State/municipal roadway projects, which means property owners and taxpayers will pay a high price for few measurable results.

The Fish, Wildlife & Water Resources Committee failed to seek out ANY environmental studies that objectively rank the activities that cause the most harm to our waterways – instead they choose to propose vague regulations that will have few measurable impacts on water quality.

Furthermore, this legislative committee failed to even evaluate the estimated costs of this new regulation vs. the expected measurable benefits to our waterways.

A large percentage of the pollutants enter lakes and ponds via tributaries that run through agricultural lands. Phosphorus ends up in the river/stream and flows directly into lakes. Notice the deltas and the corresponding growth that is brought into the lakes. If the Shoreline Protection bill only refers to lakes and ponds and no restrictions to the land adjacent to these tributaries only 1/2 the problem is addressed. There is more erosion along the riverbanks than in any lake and this bill fails to address this.

This bill exempts agriculture, silvaculture, transportation, governmental activities … from its regulation.
The biggest contributor to phosphorus in our lakes and rivers is the Vermont Dairy Farmer. The fact that many engage in better environmental practices than a generation ago, does not change that outcome.
I challenge anyone who voted for the bill to explain why, political correctness aside, they voted to exclude agriculture.
The simple fact is that they did not want to impose financial impacts on farmers; all who are treated as struggling financially, regardless of the scope of their operations. I would suggest that any legislator with a real concern for the environment should have found a way to get at the problem and to mitigate those costs.
How? Perhaps something as simple as sales tax on dairy products sold within the State with proceeds targeted toward Agricultural issues. The public who values local agriculture gets to assist. Whether the dairy product comes from Texas or Grafton, it contributes to the solution. If it is sold out of state, no tax.
The real impetus for this legislation could be Vermont’s No Growth community who would prefer lakefronts and river fronts without homes and businesses. While the impact will be inconsequential relative to phosphorus reduction; the unstated goal of shackling private development will be an unqualified success.

The real impetus for this legislation is the fact, backed by scientific studies of Vermont lakes, that the clearing of shorelands and the creation of impervious surfaces near the shore are having a significant negative impact on the shallow water habitat in our lakes. This habitat is essential for healthy lakes – for the entire food web in lakes. The legislation does not stop development, it will simply require that it be done in a lake-friendly way, as it is done in all the other New England states now.

Could it be the the lakes in NH and ME are “cleaner” because their agricultural practices are stronger and there are fewer farms on their shorelines?

As pointed out above, this legislation is clearly an attempt at regulating shoreline development masquerading as water quality protection. Most of the environmental jihadist advocating for this would be outraged if the State attempted to require ANR review of the first 250 feet from a Public right of way of their property.

The majority of shoreline property owners accept that their property rights end at the shore line, but are rightly concerned that someone from ANR would be able to regulate the grass heighth on their lawn or prohibit them from removing a dying tree near the shoreline that might impact their home, while the runoff from the veal pens of the farm on the adjacent property streams into the lake with impunity.

According to studies by the VT Agency of Natural Resources, the the areas along Lake Champlain with the LEAST development along the shoreline have the GREATEST water quality issues.

For instance, take a look at the areas along Georgia and St. Albans Bay – little development compared to Chittenden County, yet it suffers from absolutely terrible water quality issues due to agricultural runoff.

This bill will do nothing to address the true sources of pollution that enter into our waterways.

Make no mistake, this Bill is simply an effort to prevent lawful and responsible development by citizens who pay some of the highest property taxes in the State.

Can we disagree as to the primary sources of Ecoli and Phosphates in our waterways?
Colchester is in the final stages of a 3-year, $2,000,000, Integrated Water Resources Study of pollution in Malletts Bay and Colchester Point areas of Town. This is one of the densest stretch of lakefront residential development on Lake Champlain with not a single farm in sight.
Interestingly, the phosphorus levels in the Bay are lower than those in Broad Lake.
Interestingly 80% of e coli have been identified through ribotyping resulting in nearly 200 identifiable samples. The result, animals – dairy and waterfowl. Man accounted for about 8% of the samples, despite hundreds of homes, thousands of boats, and swimmers.
The town will work to lessen man’s impact.
These results show that proximity of structures to shoreline is not the issue. The problems come from upstream, up river, and from areas where development that would be restricted by this legislation does not exist. But, we do know what is there.Does our Legislature have the courage to tackle the real problem?
The facts say that the House does not; and the jury is still out on the Senate.

Another restrictive environmental law that will cost millions to implement, create another govermental agency in vermont and further corrode land owners rights! No lake,pond,or shoreline property owner wants dirty water, or environmental damage. Most will do everything in their power to prevent it. The reason they bought the property in the first place was to enjoy the beauty of pristine waters. So to have another law shoved down our throats that does nothing to address tons of farm land runoff into state wide waterways is absurd.
I was at the meeting on this bill in newport at the eastside where no one was allowed to speak and only written questions or comments where allowed, and those were carefully screened to allow no objection or negative reactions to be presented, what a farce. Haven’t we got so many more pressing problems in vermont ie: lack of jobs, high rates of wellfare, state debt, etc. Are we willing to spend millions to establish another state agency that does not tackle the real problems because they are (exempt) If this bill passes, lets vote them out!

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